A safe exit for Musharraf? - Asif ezdi - 18th November 2013

With the grant of bail to Musharraf on November 4 in the Lal Masjid case, the former military dictator is again a free man after six months of detention at his luxurious Chak Shehzad ‘farmhouse’. He had earlier also been given bail in three other pending criminal cases against him: in the Benazir assassination case on May 20; in the judges’ detention case on June 11; and in the Bugti murder case on October 9.

Since his release, Musharraf has somewhat uncharacteristically refrained from appearing publicly to celebrate his ‘victory’ or granting interviews to the media. It is obvious that his not-so-happy experience in the courts and in the rough-and-tumble of Pakistani politics has had a sobering effect on him. This has also made him more receptive to advice from his friends and former fellow-generals to lay low and stay out of the political arena.

Musharraf’s woes are, of course, not yet over. Even he must have realised by now that his plans for a political comeback under a democratic system were downright crazy. His main worry now is not how he can achieve his political ambitions but to emerge unscathed from the judicial process.

Given our ramshackle system of justice, no one expects that these trials will be over any time soon. The pace at which the Bugti and Benazir murder cases proceed depends upon the seriousness of the governments concerned in carrying out the necessary investigations, something of which there is little evidence. That is true also of the Lal Masjid case. In the judges’ detention case, in which the facts are well-known and the involvement of Musharraf is indisputable, the complainant himself has practically withdrawn himself. There is also little public interest in these four trials.

Far more important politically is the treason case against Musharraf, in which the trial has not even begun, despite the Supreme Court’s unambiguous ruling in July 2009 that the issuance of the Provisional Constitution Order in November 2007 by the then military dictator “amounts to high treason”. The PPP-led government that remained in power for five years made not even a pretence of holding Musharraf to account for what is the most reprehensible crime a person can commit.

To the contrary, Zardari made a promise to Kayani and to the Americans – which the then president happily failed to fulfil – that he would get a constitutional indemnity for Musharraf from parliament. PPP stalwarts who today bemoan the fact that the former military dictator has still not been prosecuted for treason need to be reminded of the collusion of their own party.

The Nawaz government has also been prevaricating on this issue. It has now been in power for more than five months, but its deeds have not matched its words on bringing Musharraf to justice for subverting the constitution. As time passes and no legal proceedings are begun, it is increasingly being speculated that a secret deal is in the works to enable Musharraf to slip away from the country and escape trial for high treason.

There were plenty of reassuring words in a speech Nawaz delivered in the National Assembly on June 24. In that speech, the newly elected prime minister recalled that after Musharraf’s ouster from the office of president in August 2008, his party had come under a lot of pressure to agree to the grant of indemnity to the former dictator for his unconstitutional actions but had refused to give in. The prime minister also gave the assurance that Musharraf would have to answer for his actions.

Nawaz then read out in the National Assembly a statement that the attorney general had been instructed to make in the Supreme Court later in the day during a hearing on several petitions seeking Musharraf’s trial for high treason. That statement declared that the “Federal Government, in line with Supreme Court decision in Sindh High Court Bar Association case, firmly subscribes to the view that the holding in abeyance of the constitution on 3rd November 2007 constituted an act of high treason”.

The prime minister, it added, was bound by his oath of office to ensure that persons guilty of acts under Article 6 are brought to justice. Then, somewhat enigmatically, the statement concluded that the federal government would “also take political forces into confidence through a consultative process so that the collective will and wisdom of the people of Pakistan is duly reflected in further process in this behalf.”

Two days later, the government informed the Supreme Court that it had appointed a special four-member team of the FIA to conduct an investigation into the treason allegations and that, upon completion of the investigations, it would file the “requisite complaint” against Musharraf and constitute the special court required to try him for treason.

Despite the passage of four months since then, the investigation has still not been concluded. The government has also not given any firm idea of how long it will need to complete this process. The investigation team has reportedly failed in its effort to access the relevant record of the GHQ. When it belatedly asked to interview Musharraf last week, the ex-dictator declined on grounds of his “sickness” and sought a fresh date after November 20.

Musharraf’s hope, of course, is that he will have left Pakistan before that date to look after his mother in Dubai. His request for the removal of his name for the exit control list will be coming up before the Sindh High Court on November 18. It remains to be seen what position the government will take at the hearing.

As far as is known, the consultations with ‘political forces’ on this issue, which Nawaz had promised to the National Assembly last June, have also not taken place. In fact, the government has given no indication what these consultations would be about and why they are needed when the law is quite clear.

Adding to the opaqueness of the situation are unconfirmed reports that Nawaz has discussed the issue of Musharraf’s trial with the army chief and the Saudi monarch. It has been speculated that the trial of a former army chief would cause disaffection in the top brass and that the Saudi government is loath to see Musharraf come to any harm.

All this has inevitably strengthened doubts about the government’s true intentions. The question is whether it is following a deliberate ‘go-slow’ policy to give Musharraf time to leave the country. If so, he could soon join the distinguished company of two others – Raymond Davis and Husain Haqqani – who have been helped by the Pakistani state in recent years to decamp in order to evade justice.

In its order on July 3 this year, the Supreme Court expressed the confidence that the federal government would honour its undertaking to bring treason charges against Musharraf “without unnecessary delay”. Today, it cannot be said whether that confidence has been vindicated. The court has now received a petition for the initiation of contempt of court proceedings against the prime minister for disobeying its order of vJuly 3 and scheming to provide Musharraf a safe exit from Pakistan.

Last week, former Supreme Court Chief Justice Saeed-uz-Zaman also expressed misgivings over the way the Nawaz government has been handling this matter. As he pointed out, the issuance of the PCO by Musharraf is sufficient evidence to convict him under Article 6 and all that is needed is political will on the part of the government to start the judicial process.

Musharraf’s fall has been so steep that he now cuts a pathetic figure. Nevertheless, his trial for high treason is essential. Not to wreak vengeance, but to establish the supremacy of the constitution and strengthen the democratic order.

As the Roman historian Tacitus said about two thousand years ago, there is no better way of making the laws effective than applying them to highly placed persons. That is why Article 6 must be applied to Musharraf if we want the constitution to be respected.